Court File and Parties
COURT FILE NO.: CV-22-213-00 DATE: 2023 02 22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Denise Pettipas v. Eileen Bessie Pettipas and Deborah Johnston (nee: Pettipas) personally and in her capacity as the Power of Attorney for Eileen Bessie Pettipas
BEFORE: D. E. Harris J.
COUNSEL: Ioulia Vinogradova, Lawyer for the moving party Deborah Johnson, present in person, unrepresented
DATE: January 30, 2023
ENDORSEMENT
1This was a motion for directions by Denise Pettipas under Rules 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended and ss. 3 and 79 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.
2Ms. Pettipas’ mother, Eileen Pettipas, is 88 years old and lives in Shelburne Long Term Care in Shelburne, Ontario. There is evidence that she has substantial cognitive impairment.
3Denise was made power of attorney for her mother in May of 2020. In September of 2021, to Denise’s surprise, a new will and power of attorney was executed by her mother with the assistance of a lawyer, Larry Haskell. Her sister Deborah Johnson was made power of attorney.
4Counsel for Denise wrote a letter dated June 8, 2022 to Deborah announcing that Denise and brother David opposed the validity of the new will and power of attorney. It demanded that she cease to act as power of attorney and sign a renunciation to that effect. A full accounting of any steps Deborah had taken was demanded as well. The letter went on to order that she not dissipate Eileen Pettipas’ assets including her principal residence in Amaranth, Ontario where Deborah was living and the letter was addressed. A two-week deadline for a response was imposed on Deborah.
5Apparently there was a conversation between Deborah and counsel around the time the letter was received by Deborah. Since then, Denise attests that counsel has been attempting to obtain information from Deborah about her mother’s affairs and that Deborah has been stonewalling her. This motion is brought to enable Denise’s counsel to force Deborah to release information and gather information from other sources. Some of the means to affect this are quite extraordinary, most prominently the request that an all-encompassing judicial waiver of solicitor client privilege between Eileen and her lawyers be ordered. There is no legal basis for this. A proper process for finding incapacity leading then to disclosure lies in the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, s. 100.
6These are the efforts that have been made by counsel for the Applicant to obtain the information from Deborah:
i. In an email dated June 21, 2022, counsel for Denise refers to a phone conversation she had with Deborah after the June 8, 2022 letter arrived. In it, she recounts that Deborah agreed to send the documents to her by June 16, 2022 but that the documents never arrived. Deborah also agreed to request of Eileen’s doctor her complete medical records from September 2020 to November 2021, and that they be produced to counsel. The email set a deadline of June 23, 2022.
ii. Emails and a revised letter dated July 22, 2022 eventually extended the deadline until August 3, 2022 threatening court action for non-compliance.
iii. An email of October 4, 2022 by counsel to Deborah reiterates the requests and sets a deadline of October 7, 2022.
7Deborah appeared in person on this motion. She said that she had received the material for the motion from her mother who had been served as well but that she never received it by the email sent to her by counsel. As was stated in the correspondence from counsel recounting a conversation between them, she is “not good” with email. She did not think the email address the material was sent to was correct although she was unsure. It is noted that the first letter dated June 8 was sent snail mail to her address and led to a conversation between Deborah and Denise’s counsel. The July 22, 2022, letter was purportedly sent by registered mail and email but there is no proof it was received. The final communication in October from counsel was sent only by email. I am not convinced that Deborah received that email or the other emails in the record.
8Deborah agreed to supply the majority of the material the Applicant seeks when she appeared in court for this motion. In terms of this motion, it should be noted that the requests from counsel in this case have been quite aggressive beginning with the opening salvo that the will and the power of attorney from 2021 are believed to be invalid. The imposition of deadlines and threatening court action, although perhaps evincing understandable frustration, continued the trend. That is not always the best approach. Sometimes, with a direct frontal attack, people get their backs up and become stubborn.
9Furthermore, it is obvious that Deborah is not a businessperson or someone with financial prowess. Neither is she someone skilled in email communication. Deborah said when present in court that she works with horses and has long workday hours.
10The request for a broad unconditional waiver of solicitor client privilege is also indicative of substantial overreach. At the same time, I agree that there is some reason for concern. There is no reason not to grant some of the relief requested.
11I would not grant the orders requested against Larry Haskell, counsel involved in the 2021 Power of Attorney. However, it would be helpful and would expedite the process if he would cooperate as best he can.
ORDER TO BE MADE
12Ms. Deborah Johnson must provide an accounting of her mother’s financial affairs from the date of the Power of Attorney in September, 2021 to the present including all account statements, invoices, receipts and all other relevant information not later than 30 days from the date of this endorsement. There should be an accounting yearly at the beginning of February.
13Ms. Johnson is ordered to supply all medical, nursing and residential care reports with respect to Eileen Pettipas from the time of the 2021 Power of Attorney to the present not later than 30 days from the date of this endorsement. These should also be supplied yearly at the beginning of February.
14There will be a non-dissipation order.
15Approval by the Respondent of any order taken out is waived.
COSTS
16The Applicant requests $15,507.50 in costs. In my view, this is grossly excessive for what ought to have been a simple motion. Counsel’s 28 hours cannot possibly be justified. In addition, as I have indicated, I am not entirely convinced that this motion was required and that greater efforts to contact and engage with Ms. Johnson ought not to have been undertaken.
17I would grant $1500 in costs all inclusive to be paid within 60 days.
D. E. Harris J.
DATE: February 22, 2023